Impaired Driving Laws
Impaired driving is the leading criminal cause of death and injury in Canada. In 2016, there were more than 70,000 impaired driving incidents reported by the police, including almost 3,000 drug-impaired driving incidents. The Criminal Code prohibits driving while impaired to any degree by drugs and alcohol.
On April 13, 2017, the Government of Canada introduced Bill C-46, the most comprehensive reform to the Criminal Code transportation regime in more than 40 years. The Bill passed Parliament on June 20, 2018 and received Royal Assent on June 21, 2018. The new law is a modern, simplified, and more coherent system of reforms to better deter and detect drug and alcohol-impaired driving.
It is important to note that provinces and territories have additional laws or regulations that may apply. Make sure to check the laws in your area.
Please visit Canada’s impaired driving webpage for statistics, research, and more information on the dangers of driving while impaired.
The elements of the legislation related to drug-impaired driving came into force on Royal Assent, June 21, 2018. The legislation authorizes police to use additional tools, such as roadside oral fluid drug screeners, enacts new driving offences of being over a prohibited blood drug concentration, and allows for blood samples to be collected without first requiring a driver to undergo a drug recognition evaluation. It also gives authority for the Governor in Council to make regulations setting the levels for various impairing drugs and these regulations came into force on June 26, 2018.
The part of the legislation related to alcohol-impaired driving and that repeals and replaces the transportation regime, including the impaired driving provisions of the Criminal Code, will come into force on December 18, 2018. This includes mandatory alcohol screening, facilitating the proof of blood alcohol concentration, eliminating and limiting defenses that reward risk-taking behavior, and clarifying Crown disclosure obligations.
On this page
Part 1: Drug-impaired driving
Part 1 of the new impaired driving legislation, which introduces new offences for drug-impaired driving, came into force on June 21, 2018.
Legal drug limits
The legislation creates three new offences for having a prohibited concentration of drugs in the blood within two hours of driving. The levels for THC are at:
- for the summary conviction offence for 2 nanograms (ng) but less than 5 ng of THC per millilitre (ml) of blood
- for the hybrid offence for 5 ng or more of THC per ml of blood
- for the hybrid offence for a combination of 50 milligrams (mg) of alcohol per 100 ml blood + 2.5 ng or more of THC per 1 ml of blood
The regulations setting the prohibited levels of drugs came into force on June 26, 2018. Along with THC, these offences apply for any detectable levels of other impairing drugs including cocaine, methamphetamine, LSD, 6-MAM (a metabolite of heroin), Ketamine, Phencyclidine, and Psilocybin and Psilocin (magic mushrooms). Scientific advice indicates that these drugs are incompatible with safe driving at any level. As well, the level for GHB is 5 mg/L as the body can naturally produce low levels of this drug, and as such, a blood drug concentration of “any detectable level” would not be appropriate for this drug. The law also applies to those with medical authorization for cannabis.
The new legislation makes detecting drug-impaired driving easier by authorizing the following:
- if police have a reasonable suspicion that a driver has a drug in their body, they may demand an oral fluid sample to test for drug presence at the roadside
- if they have reasonable grounds to believe an offence has been committed, such as a positive result on an oral fluid test together with other observed factors, police may pursue drug recognition evaluation or take a blood sample
- police officers trained in drug recognition and evaluation (DRE) are able to provide opinion evidence in court as to whether or not a driver was impaired by a drug, without the need to qualify them as an expert witness in each trial
- a rebuttable presumption to better link the drug found in the body by the DRE trained officer with the observed signs of impairment at the roadside or while driving. This means that where an evaluating officer has identified a drug type as impairing a driver at the time of testing and that drug type is found by analysis to be in the driver’s body, it will be presumed that the drug was causing impairment at the time of driving
Oral fluid drug screeners
Oral fluid drug screeners can be used by police to detect the presence of some drugs in saliva, including THC, the main impairing component in cannabis. These devices are fast, non-invasive, and accurate. They can detect some or all of THC, cocaine and methamphetamine, the three most common impairing drugs found in Canadian drivers. Police can demand an oral fluid sample if the officer has a reasonable suspicion that the driver has drugs in their body based on objectively visible facts, such as:
- red eyes
- muscle tremors
- speech patterns
If a driver tests positive on an oral fluid screening test, the positive result would confirm the presence of the drug and, combined with other signs of impairment observed by the police at the roadside, would provide grounds for the investigation to proceed further either by making a demand for DRE or a blood sample
Part 2: Alcohol-impaired driving
Part 2 of the new impaired driving legislation significantly reforms the entire Criminal Code regime dealing with transportation offences, including alcohol-impaired driving. It will come into force on December 18, 2018. Combined with the new drug-impaired driving offences in Part 1 of the legislation, this will create a modernized, simplified, coherent legislative framework addressing all transportation offences including impaired driving in Canada.
Some key elements include:
- simplifying and modernizing the transportation provisions, including the impaired driving provisions, in the Criminal Code to create a more coherent and efficient legislative framework
- authorizing mandatory alcohol screening to make it easier to detect whether a driver is impaired
- eliminating some defences that encourage risk-taking behaviour
- making it easier to prove blood alcohol concentration for some impaired driving offences
- clarifying what information the Crown is required to disclose to prove blood alcohol concentration
Under the current law, police officers must have reasonable suspicion that a driver has alcohol in their body before doing any roadside testing. When Part 2 of the legislation comes into force, police officers who have an approved screening device on hand will be able to test a breath sample of any driver they lawfully stop, even without reasonable suspicion that the driver has alcohol in their body. This would be done after the person has been lawfully stopped pursuant to existing authority (common law or provincial highway traffic act). A driver who refused to provide a breath sample could be subject to a criminal offence.
Research suggests that up to 50% of drivers with a blood alcohol concentration above the legal limit are not detected at roadside check stops. Mandatory alcohol screening will assist in deterring individuals impaired by alcohol from driving, as well as better detect those who do. It is currently authorized in over 40 countries worldwide, including Australia, New Zealand, Austria, Belgium, Denmark, Finland, France, Germany, Ireland, The Netherlands and Sweden. Authorities in Ireland credit mandatory screening reducing the number of deaths on Irish roads by approximately 40 per cent in the first four years after it was enacted.
The Minister of Justice and Attorney General of Canada tabled a Charter Statement to help inform public debate on the constitutionality of mandatory alcohol screening.
Eliminating and restricting defences
Under the current law, drivers can argue that alcohol that they drank just before driving was not fully absorbed and so they were not over the limit when driving. This is known as the “bolus drinking defence”. The new law removes this defence by making it illegal to be at or over the alcohol limit within two hours of driving.
Further, under the current law, a driver may claim they consumed alcohol after driving but before testing. They can claim that this alcohol is what put them over the limit at the time of testing and that they were not over the limit while they were driving. The new law only allows this defence in a situation where a driver drank after driving and had no reason to expect a demand by the police for breath testing.
The new law clarifies what evidence the prosecution has to provide the defence about breath testing conducted at the police station. The prosecution will only be required to disclose information that is scientifically relevant, such as the result of calibration checks and any error messages produced by the approved instrument. Defence can apply for further disclosure relating to breath testing, but the court would first need to be satisfied that the requested material is relevant.
- Cannabis laws and regulations
- Impaired driving
- News Release: Canada takes action to legalize and strictly regulate cannabis
- Backgrounder: Changes to impaired driving laws
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